Donald Trump is prepared to go to the US Supreme Court with a challenge to a Colorado decision keeping him off the state's 2024 ballot. Colorado's Supreme Court ordered Trump's name removed from the Republican primary presidential ballot – though it stayed its own decision, conceding that a final ruling on the matter would likely be made by the nation's highest court. The former president's attorney tweeted out the announcement of his appeal: Trump asks the court to take his case and to rule against the Centennial State's assertion that he can be eliminated from the vote due to a post-Civil War constitutional amendment designed to keep unrepentant Confederates out of government. The outcome of this case may control how all the many challenges Trump faces regarding ballot access are handled.
The petition's summation of the issue can't be improved upon:
“Over the last few months, more than 60 lawsuits or administrative challenges have been filed seeking to keep President Trump from appearing on the presidential primary or general-election ballot. The common theory behind these lawsuits and challenges is that President Trump is somehow disqualified from holding office under section 3 of the Fourteenth Amendment because of an allegation that he ‘engaged in insurrection’ on January 6th, 2021.”
Trump argues that no candidate can be kept off a ballot because of the 14th Amendment. He says the prohibition discussed in the amendment "prohibits individuals only from holding office," not running for office (emphasis in the original), and that forcing him "to prove that he is not disqualified before appearing on the ballot effectively adds new, extra-constitutional requirement to running for office." He claims that by considering the eligibility question and subsequently barring him, the Colorado Supreme Court illegally snatched authority that belonged only to Congress.
The relevant section of the 14th Amendment reads:
“No person shall be a Senator or Representative in Congress, or elector of President and Vice-President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.”
Trump also argues he isn’t "an officer of the United States," as written in the Amendment, because he took a different oath than the one set forth in section 3, and the presidency is not an "office under the United States."
The Many Claims of Trump
The petition claims Colorado's Supreme Court erred in finding that January 6th was an insurrection and that Trump engaged in it. It also declares the state court proceedings premature and in violation of the US Constitution's Electors Clause (Article 2, Section 1, Clause 2) for several reasons, including conducting unfair proceedings violating Colorado law. It's a roadmap demonstrating many paths to legal victory. Justices could rule in his favor based on any of the many challenges to his removal. This is a case of first impression, which means the court will decide the legal issues presented for the first time.
The urgency for the Supreme Court to decide these issues is only increasing as Mr. Trump is now not the only candidate facing ballot removal. It appears that with the decisions from both Colorado and Maine, Democrats nationwide have been emboldened to try and remove other candidates using the same arguments. Law professor Jonathan Turley's latest article in the New York Post documents the efforts against various members of Congress, including Rep. Scott Perry (R-PA).
But the Colorado case is not the only legal filing Donald Trump's legal team is handling right now. As the DOJ's Special Counsel Jack Smith continues to push his prosecution of Trump in the DC courts for events related to January 6, 2021, Trump is doing a little pushing back himself.
Accountability Requested
Donald Trump sought an order punishing the Biden DOJ prosecutors on his case – Jack Smith, Molly Gaston, and Thomas Windom. The petition asks his trial judge, Obama appointee Tanya Chutkan, to order those prosecutors to explain why they shouldn't be held in contempt. Trump argues that by continuing to produce evidence and otherwise advance the case against him in the trial court, the Biden lawyers are violating a court order that has already halted those proceedings. "The prosecutors have shown, repeatedly, that they are unwilling to act in good faith and have announced their intention to continue violating the Stay Order if left to their own devices." Trump's lawyers wrote:
"By themselves, each of the prosecutors' violations – including a large discovery production, an extensive exhibit list production, and lengthy MIL [Motion In Limine] briefing – would be substantial and warrant sanction. Taken together with the prosecutors' threat to continue violating the Stay Order indefinitely, there is no question here that the prosecutors' actions are purposely contemptuous. This conduct is beyond the pale and must be sanctioned."
Mr. Smith’s office has not yet filed a response.
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